Citation NR: 9636467
Decision Date: 12/23/96 Archive Date: 01/02/97
DOCKET NO. 94-26 213 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Des Moines,
Iowa
THE ISSUE
Entitlement to service connection for the cause of the
veteranís death.
REPRESENTATION
Appellant represented by: The American Legion
WITNESS AT HEARING ON APPEAL
Appellant and her son
ATTORNEY FOR THE BOARD
Andrew E. Betourney, Associate Counsel
INTRODUCTION
The veteran served on active duty from August 1943 to March
1946. He died in November 1993. The appellant is the
veteranís widow.
This matter comes before the Board of Veteransí Appeals
(Board) on appeal from a January 1994 rating decision by the
Department of Veterans Affairs (VA) Regional Office (RO) in
Des Moines, Iowa, which denied the appellantís claim for
service connection for the cause of the veteranís death.
CONTENTIONS OF APPELLANT ON APPEAL
The appellant essentially contends that the veteranís death,
resulting from arteriosclerotic cardiovascular disease, was
due to the veteranís service-connected thrombophlebitis.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
ß 7104 (West 1991 & Supp. 1996), has reviewed and considered
all of the evidence and material of record in the veteran's
claims file. Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that the preponderance of the
evidence is against the claim of entitlement to service
connection for the cause of the veteranís death.
FINDINGS OF FACT
1. At the time of the veteranís death in November 1993,
service connection was in effect for left leg
thrombophlebitis, evaluated as 10 percent disabling; and for
dermatophytosis of the left foot, evaluated as
noncompensable.
2. The cause of the veteranís death was certified as
arteriosclerotic cardiovascular disease. An autopsy
revealed, in pertinent part, cardiovascular and genitourinary
findings of severe coronary atherosclerosis on the right and
left; an almost complete occlusion of the right coronary
artery; cardiac hypertrophy of the left ventricle; status
post operation, remote coronary artery bypass surgery and
midline thoracoabdominal scar; and nephrosclerosis.
3. Neither arteriosclerotic cardiovascular disease, coronary
atherosclerosis, coronary occlusion, cardiac hypertrophy, nor
nephrosclerosis were demonstrated during the veteranís active
duty service, and none of these disorders is not shown to
have been compensably disabling within one year of his
separation from active duty.
CONCLUSION OF LAW
A service connected disorder did not cause or contribute
substantially or materially to the cause of the veteranís
death. 38 U.S.C.A. ßß 1310, 5107 (West 1991); 38 C.F.R. ß
3.312 (1995).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Factual Background
The veteran died on November [redacted], 1993. The immediate
cause of death listed on the Certificate of Death was arteriosclerotic
cardiovascular disease. At the time of the veteranís death he
was service connected for thrombophlebitis of the left leg,
evaluated as 10 percent disabling, and for dermatophytosis of
the left foot, evaluated as noncompensable.
A full autopsy of the veteran was performed on the date of
death, resulting in four findings relevant to the veteranís
cardiovascular system: (1) severe coronary atherosclerosis on
the right and left; (2) almost complete occlusion of the
right coronary artery; (3) cardiac hypertrophy of the left
ventricle; and (4) status post operation, remote coronary
artery bypass surgery and midline thoracoabdominal scar.
Autopsy of the genitourinary system was notable, in pertinent
part, for a finding of nephrosclerosis. No finding or
diagnosis of thrombophlebitis is included in the autopsy
report.
A review of the veteranís service medical records indicates
that he was diagnosed in May 1944 with Vincentís angina. In
October 1945 he was diagnosed with acute lymphangitis of the
left leg, as well as acute lymphadenitis of the left femur,
both secondary to a severe, acute left leg infection, of
undetermined cause. At a February 1946 separation
examination the veteranís cardiovascular system was evaluated
as normal, and his blood pressure was within normal limits.
In October 1946, after his separation from service, the
veteran underwent a VA examination of his left leg. At that
time a diagnosis of thrombophlebitis was made. Examination
of the heart revealed no abnormalities, and the veteranís
blood pressure was within normal limits. In October 1946,
the veteran underwent surgery for ligation and division of
the large saphenous vein of the left lower leg at the site of
the thrombosed area in that same month. The RO granted
service connection for thrombophlebitis of the left leg,
effective March 1946, by a rating decision dated in January
1947.
Other medical evidence included in the veteranís claims file
includes treatment summary reports dated in September 1947,
November 1947, October 1948, and February 1955, as well as
the results of VA examinations in January 1949, and January
1957. All of these reports indicate varying diagnoses of
thrombophlebitis (or Buergerís disease, which was determined
to be part of the same diagnosis in the December 1948
treatment summary). These records are otherwise relevant for
elevated blood pressure readings of 110/90 and 130/90 which
were recorded in January 1957.
The veteran underwent a general medical examination of his
service-connected disorders in October 1967. At that time it
was noted that the swelling caused by the veteranís
thrombophlebitis required him to wear an elastic stocking
below a knee support. He reported having trouble standing
for longer than an hour at a time. Clinical examination
revealed evidence of deep thrombophlebitis of the left leg.
The extremities were found to be normal, with the exception
of swelling of the lower left leg. The veteranís
cardiovascular system was found to be normal. The examiner
diagnosed ďservice connected 30 percent for thrombophlebitis
of the left leg with persistent swelling.Ē
The veteranís claims file also contains various VA outpatient
treatment notes, examination reports, discharge summaries,
and radiology reports dated between 1981 and November 1993.
These reports reveal that the veteran was treated for renal
stones in 1981; that in 1986, he was diagnosed with
hypertension and coronary artery disease, and underwent a
four vessel coronary artery bypass graft; and that in 1987,
he was diagnosed with peripheral vascular disease. In 1989,
the veteran was diagnosed with a left thalamic infarct, and
occlusive heart disease. An October 1993 VA Medical Center
(VAMC) discharge summary noted a history of multiple cerebral
vascular accidents, with right hemiplegia and dysarthria, as
well as the prior coronary artery bypass graft procedure.
The veteran was hospitalized in early November 1993. The
diagnoses included a comatose state secondary to an old
cerebral vascular accident.
Also included in the claims file is a letter from Kevin F.
Cunningham, M.D., dated in August 1994. In the letter the
physician stated the following opinion:
A paradoxical embolus causing an acute
cerebrovascular accident is indeed
possible in a patient with known venous
disease.
To reiterate, it is not at all as rare as
once thought for a person with venous
blood clots in the legs to sustain a
stroke from this through the mechanism of
a tiny flap in the middle of the heart
called a patent foramen ovale. A blood
clot coming up from the veins in the leg
going through this tiny hole in the
middle of the heart and into the artery
system up into the brain can cause
strokes in a hidden fashion.
During the course of her August 1995 hearing before an RO
hearing officer, the appellant stated that Dr. Cunningham had
never seen or treated the veteran.
In an effort to clarify the relationship, if any, between the
veteranís service-connected thrombophlebitis and his death
from arteriosclerotic cardiovascular disease, the RO sent a
request to the VA physicians who treated the veteran in the
months prior to his death. The request, dated in January
1995, asked the physicians to review the veteranís record and
make a statement regarding any phlebitis connection with leg
nonhealing. In a February 1995 response, the first physician
stated that he or she was not involved in the veteranís care
until the very last 5 days of the veteranís hospitalization.
This physician therefore referred the question to a second
physician, who apparently had more involvement in the
veteranís care. This second physician stated the following:
Venous disease may be an underlying cause
of nonhealing ulcers. This ptís
[patientís] venous disease likely
contributed to the ankle ulcer not
healing. In reviewing the autopsy
findings, I canít conclude that the ankle
ulcer contributed to ptís death.
Analysis
As a preliminary matter, the Board finds that the appellantís
claim is plausible or capable of substantiation and is thus
well grounded within the meaning of 38 U.S.C.A. ß 5107(a).
The Board is satisfied that all relevant facts have been
properly developed. No further assistance to the appellant
is required in order to comply with the duty to assist as
mandated by 38 U.S.C.A. ß 5107(a).
Dependency and indemnity compensation may be awarded to a
veteranís spouse, children, or parents for death resulting
from a service-connected or compensable disability. 38
U.S.C.A. ß 1310; 38 C.F.R. ß 3.312. In order to establish
service connection for the cause of a veteranís death, the
evidence must show that a disability incurred in or
aggravated by service was either the principal cause of death
or a contributory cause of death.
There is no dispute that the veteran suffered from
thrombophlebitis of the left leg. The only question at issue
therefore appears to be the precise role, if any, the
veteranís thrombophlebitis played in his death. It was for
this reason that the veteranís claims file was sent to
physicians at the Des Moines VAMC in an effort to procure an
opinion as to whether thrombophlebitis was a contributing
cause in the veteranís death. The VAMC response, based on a
review of the decedentís autopsy findings and the evidentiary
record, indicated that the physician could not conclude that
the veteranís service-connected thrombophlebitis was a
contributing cause of his death. The Board finds that this
specific medical opinion, based as it was on a review of
medical evidence surrounding the circumstances of the
veteranís death, combined with the fact that neither the
Certificate of Death nor the autopsy noted thrombophlebitis
as a cause or a condition contributing to death, to be
persuasive as to the issue at hand.
Although a private physicianís statement, dated in August
1994, made a general statement of ďpossibleĒ linkage between
known venous disease and a paradoxical embolus causing an
acute cerebrovascular accident, the Board finds this
statement to be unpersuasive on two counts. First, the
opinion is speculative and indefinite, as it talks merely of
a ďpossibleĒ linkage. Secondly, and perhaps even more
importantly, the statement was one of general medical
application, and apparently was not based on either an
evaluation of the veteran or a review of all of his medical
files. As such, the Board finds this theoretical statement
is clearly outweighed by the persuasiveness of the February
1995 statement by a physician who had both personally treated
the veteran and who had the advantage of reviewing all of his
medical files prior to forming this opinion.
The Board has considered the statements made by the appellant
and her son, both at the August 1995 hearing and in various
lay statements, contending that the veteranís
thrombophlebitis was a contributing cause of his death.
However, as neither the appellant nor her son are medical
experts, they are not competent to express competent opinions
regarding any medical causation of the veteranís death.
Espiritu v. Derwinski, 2 Vet.App. 492, 494-95 (1992). Thus,
the Board finds that the testimony and statements made by the
appellant and her son that the veteranís thrombophlebitis
contributed to his death are not competent evidence to the
extent that they purport to establish such a medical linkage.
Based on the evidence of record and the discussion above, the
Board finds that the preponderance of the evidence
demonstrates that service connection for the cause of the
veteranís death is not warranted.
In reaching this decision the Board considered the doctrine
of reasonable doubt, however, as the preponderance of the
evidence is against the appellantís claim, the doctrine is
not for application. Gilbert v. Derwinski, 1 Vet.App. 49
(1990).
ORDER
The appellantís claim of entitlement to service connection
for the cause of the veteranís death is denied.
DEREK R. BROWN
Member, Board of Veterans' Appeals
The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, ß 6, 108 Stat. 740, 741
(1994), permits a proceeding instituted before the Board to
be assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. ß 7266 (West
1991 & Supp. 1996), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, ß 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.
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